Concur in Part/Dissent in Part.
" 1 I concur in affirming the conviction but dissent to reversing the sentence and remanding the case for resentencing for the following reasons.
1 2 In Appellant's first proposition of error, he argues he was denied his right to a fair trial because the jury instructions on the defense of voluntary intoxication did not state the applicable law. Specifically, he asserts Instruction No. 88 improperly referenced "mens rea" instead of setting forth the specific criminal intent for first degree murder, and that other jury instructions did not cure any error. The majority's reliance on Coddington v. State is misplaced as the issue in that case was whether trial court limitations on the testimony of the defense expert deprived the defendant of his constitutional rights to present a defense and confront the State's evidence. This Court found that even without the expert's opinion on the effects of cocaine intoxication, the defense raised sufficient evidence for the trial court to instruct the jury on his defense of voluntary intoxication. Id., 2006 OK CR 34, € 40-49, 142 P.3d 487, 449-451. However, the Court did not discuss the standard of review used to determine that the evidence was sufficient to warrant a jury instruction. In the present case, we are concerned with the sufficiency of the jury instructions on voluntary intoxication, not admissibility of expert opinion.
13 Further, I disagree with the majority's need to restate the legal standard used to determine when an instruction on voluntary intoxication is warranted. Our prior case law is not inconsistent and 48 needlessly confuses the issue. Whether the standard is stated as "sufficient evidence to raise a reasonable doubt as to the defendant's ability to form the requisite criminal intent", see Taylor v. State, 2000 OK CR 6, ¶ 19, 998 P.2d 1225, 1230; Crawford v. State, 1992 OK CR *23462, ¶ 53, 840 P.2d 627, 688, or as "sufficient, prima facie evidence [] which meets the legal criteria for the defense of voluntary intoxication", Jackson v. State, 1998 OK CR 39, ¶ 65, 964 P.2d 875, 892 (per curiam ), the requirement is the same.1 It is not enough for the defense to present evidence of intoxication, the defense must present prima facie evidence that the defendant was so utterly intoxicated at the time of the crime that his mental powers were overcome, rendering it impossible for him to form the specific erimi-nal intent or special mental element of the crime.
1 4 While I don't fully agree with the majority's analysis of the jury instructions, I do agree that any error was harmless beyond a reasonable doubt. It seems that the majority's admission that no reasonable juror could have concluded that Appellant was so utterly intoxicated at the time of the crime that his mental powers were overcome, rendering it impossible for him form the specific criminal intent or that he did not intend to kill the victim is tantamount to saying that even a "bare prima facie" case was not established, in which case Appellant would not have been entitled to the instructions he now finds erroneous.
15 As for the victim impact evidence, I agree that the trial court erred in failing to hold a hearing to determine the admissibility of the evidence, pursuant to Cargle, and that trial court and counsel alike failed in their responsibility to review the victim impact evidence and determine its admissibility pri- or to the second stage. If a hearing had been held, hopefully it would have prevented the overly emotional victim impact evidence from being presented. However, I find any errors in the admission of the vietim impact testimony harmless beyond a reasonable doubt. Evidence of Appellant's cold-blooded execution of Trooper Green, as seen on the Dasheam video, when viewed in conjunction with the evidence in aggravation of Appellant's prior assaults and attempts to escape, show that no reasonable juror would have chosen any punishment other than death. To say that the death sentence in this case was improperly influenced by the victim impact evidence is to turn a blind eye to the other legally admitted evidence. I find the majority is overly generous in giving Appellant another chanee to find one juror who will save him from the death penalty.
T6 Further, I find nothing inappropriate about references in vietim impact evidence to God and the Bible. It seems as though courts have become overly phobic of any references to God or the Bible. When we review the works of great American orators and trial lawyers such as Abraham Lincoln, William Jennings Bryan and even the agnostic Clarence Darrow, we find quotations from the Bible and references to God. It is hard to determine exactly when such comments became anathemas, but there is certainly no basis in history for such an approach. It is interesting to note the majority finds such references too emotional when included in victim impact evidence or made by the State. However, defense counsel is criticized for not being emotional enough and no objection is raised to his closing arguments calling on the name of God to save his client. The majority's standard for determining what comments are appropriate or inappropriate seems inconsistent.
17 As for the claims of ineffective assistance of counsel, it is not the role of this Court to dictate when the defendant and his chosen expert witness must meet, nor is it the proper role of this Court to find it per se unreasonable if the meeting has not occurred prior to trial. Each case has its own unique facts and circumstances. While it may be unreasonable in one case for the expert to fail to meet with the defendant before trial, in another trial it might not be unreasonable. In this case, I do not find it indicative of ineffective assistance of counsel.
T8 Further, I do not find counsel's failure to investigate further and present additional mitigation witnesses ineffective. Most capi*235tal appeals include an allegation that additional witnesses could have been called. However, the standard of review on appeal is deficient performance plus prejudice. Here, Appellant has failed to show he was prejudiced by the absence of additional mitigating witnesses. Most of the information contained in the affidavits from family and friends attached to the application for eviden-tiary hearing was presented to the jury. Appellant's sister and wife testified to his background, childhood, school activities, family life, devotion to his wife, mother and children, his good nature and character, and the fact that he was gainfully employed first with various ambulance services as a paramedic and later as a fireman prior to this arrest for drug possession. These same witnesses also described Appellant's depression and drug use stemming from his mother's death and his own divorce as well as his downward spiral into eriminal behavior after he began using methamphetamines. The defense also introduced copies of Appellant's generally positive work evaluations from his employment with the fire department and an ambulance service. Much of Appellant's proposed additional mitigation evidence was cumulative to that presented to the jury. Even if trial counsel had presented all of the mitigating witnesses now proposed, there is no reasonable probability that the outcome of the trial would have been different. Therefore, considering all the facts and circumstances, Appellant has failed to show he is entitled to an evidentiary hearing and that counsel's second stage performance was ineffective.
T9 Additionally, the prosecutor's second stage closing argument was not improper. The comments were based on the evidence and inferences therefrom. The majority's condemnation of the argument is merely another attempt to sanitize the defendant but dehumanize the victim.
10 I find the death sentence in this case was the result of the jury's thorough consideration and evaluation of the evidence, and that decision was not improperly influenced by victim impact evidence or prosecutorial comments. The facts of this case-the coldblooded execution of a Highway Patrolman, begging for his life-and not the testimony of a family member, have dictated the result. For all of the above reasons, I would affirm the conviction and the death sentence.
. I also disagree with the statement in 48 that the test cited in Taylor was previously rejected in Jackson. Jackson clarified the standard setting forth the quantum of evidence required before the jury can legally consider the defendant's state of intoxication as a defense. In so doing it did not overrule well established case law regarding when the evidence was sufficient to warrant a jury instruction.